{2:54 minutes to read} One of the greatest legal pitfalls facing employees can start at square 1 — the employment application.

It is improper for an employment application to include any of the following inquiries:

• Date of birth
• Graduation date  (indirect way of revealing age)
• Whether employee is a US citizen (may ask if an applicant is legally eligible to work in the United States)
• Race, gender or national origin
• Marital status
• Social Security number
• Disabilities and medical conditions
• Height and weight
• Education — if a job does not require a particular level of education, it is improper to ask questions about an applicant’s educational background. If unrelated, such an inquiry can be deemed discriminatory against minorities that may have obtained lesser levels of education.

One particular area of concern is about arrests and criminal convictions. Questions regarding arrests alone are generally improper. In addition, there is an increase in the number of states and municipalities with “ban the box” legislation that prohibits an employer from asking about a conviction history on the job application.

Employers are permitted (with the written authorization of an applicant) to obtain background checks which will reveal the existence of a criminal conviction. Whether the existence of a criminal conviction can provide the basis for adverse hiring decisions depends on state law. However, in New York State, an employer may not deny employment unless there is a direct relationship between the conviction and the employment sought, or unless granting the employment would involve an unreasonable risk to property or the safety and welfare of others. Factors considered are:

• Job duties;
• The bearing the criminal offense will have on the ability to perform the job duties;
• The time elapsed since the occurrence of the criminal offense;
• The age of the person at the time of the offense;
• The seriousness of the offense; and
• Any information produced about the person’s rehabilitation and good conduct.

Therefore, if an applicant had a conviction for credit card fraud, an employer may be justified in denying employment for a job where the employee would be handling sensitive information such as credit card information and Social Security numbers.

While an employer may also be permitted (with the written authorization of an applicant) to obtain credit reports, many states have laws making it an illegal employment practice for an employer to use a credit report in making employment-related decisions. Exceptions include:

• Financial institutions;
• Public safety officers; and
• Where the information obtained through a credit report could be relevant to job duties.  

The best practice for employers is to make sure that their job applications and use of applicant background checks are consistent with federal, state, and local laws.

Alan Krystal

Alan H. Krystal, P.C.
631 780 6555
Alan@alankrystallaw.com